[Federal Register: August 13, 2007 (Volume 72, Number 155)]
[Proposed Rules]
[Page 45201-45213]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr13au07-23]
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
Centers for Medicare & Medicaid Services
42 CFR Parts 440 and 441
[CMS 2261-P]
RIN 0938-A081
Medicaid Program; Coverage for Rehabilitative Services
AGENCY: Centers for Medicare & Medicaid Services (CMS), HHS.
ACTION: Proposed rule.
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SUMMARY: This proposed rule would amend the definition of Medicaid
rehabilitative services in order to provide for important beneficiary
protections such as a person-centered written rehabilitation plan and
maintenance of case records. The proposed rule would also ensure the
fiscal integrity of claimed Medicaid expenditures by clarifying the
service definition and providing that Medicaid rehabilitative services
must be coordinated with but do not include services furnished by other
programs that are focused on social or educational development goals
and available as part of other services or programs. These services and
programs include, but are not limited to, foster care, child welfare,
education, child care, prevocational and vocational services, housing,
parole and probation, juvenile justice, public guardianship, and any
other non-Medicaid services from Federal, State, or local programs.
DATES: To be assured consideration, comments must be received at one of
the addresses provided below, no later than 5 p.m. on October 12, 2007.
ADDRESSES: In commenting, please refer to file code CMS-2261-P. Because
of staff and resource limitations, we cannot accept comments by
facsimile (FAX) transmission.
You may submit comments in one of four ways (no duplicates,
please):
1. Electronically. You may submit electronic comments on specific
issues in this regulation to http://www.cms.hhs.gov/eRulemaking. Click
on the link ``Submit electronic comments on CMS regulations with an
open
comment period.'' (Attachments should be in Microsoft Word,
WordPerfect,
or Excel; however, we prefer Microsoft Word.)
2. By regular mail. You may mail written comments (one original and
two copies) to the following address ONLY: Centers for Medicare &
Medicaid Services, Department of Health and Human Services, Attention:
CMS-2261-P,
Please allow sufficient time for mailed comments to be received
before the close of the comment period.
3. By express or overnight mail. You may send written comments (one
original and two copies) to the following address ONLY: Centers for
Medicare & Medicaid Services, Department of Health and Human Services,
Attention: CMS-2261-P, Mail Stop C4-26-05,
4. By hand or courier. If you prefer, you may deliver (by hand or
courier) your written comments (one original and two copies) before the
close of the comment period to one of the following addresses. If you
intend to deliver your comments to the
telephone number (410) 786-3685 in advance to schedule your arrival
with one of our staff members.
Room 445-G,
(Because access to the interior of the
available to persons without Federal Government identification,
commenters are encouraged to leave their comments in the CMS drop slots
located in the main lobby of the building. A stamp-in clock is
available for persons wishing to retain a proof of filing by stamping
in and retaining an extra copy of the comments being filed.)
Comments mailed to the addresses indicated as appropriate for hand
or courier delivery may be delayed and received after the comment
period.
Submission of comments on paperwork requirements. You may submit
comments on this document's paperwork requirements by mailing your
comments to the addresses provided at the end of the ``Collection of
Information Requirements'' section in this document.
For
the SUPPLEMENTARY INFORMATION section.
FOR FURTHER INFORMATION CONTACT: Maria Reed, (410) 786-2255 or Shawn
Terrell, (410) 786-0672.
SUPPLEMENTARY INFORMATION:
Submitting Comments: We welcome comments from the public on all
issues set forth in this rule to assist us in fully considering issues
and developing policies. You can assist us by referencing the file code
CMS-2261-P and the specific ``issue identifier'' that precedes the
section on which you choose to comment.
Inspection of Public Comments: All comments received before the
close of the comment period are available for viewing by the public,
including any personally identifiable (for example, names, addresses,
social security numbers, and medical diagnoses) or confidential
business
included in a comment. We post all comments received before the close
of the comment period on the following Web site as soon as possible
after they have been received: http://www.cms.hhs.gov/eRulemaking.
Click on the link ``Electronic Comments on CMS Regulations'' on that
Web site to view public comments.
Comments received timely will also be available for public
inspection as they are received, generally beginning approximately 3
weeks after publication of a document, at the headquarters of the
Centers for Medicare & Medicaid Services,
a.m. to 4 p.m. To schedule an appointment to view public comments,
phone 1-800-743-3951.
I. Background
A. Overview
Section 1905(a)(13) of the Social Security Act (the Act) includes
rehabilitative services as an optional
Current Medicaid regulations at 42 CFR 440.130(d) provide a broad
definition of rehabilitative services. Rehabilitative services are
defined as ``any medical or remedial services recommended by a
physician or other licensed practitioner of the healing arts, within
the scope of his or her practice under State law, for maximum reduction
of physical or mental disability and restoration of a recipient to his
best possible functional level.'' The broad general language in this
regulatory definition has afforded States considerable flexibility
under their State plans to meet the needs of their State's Medicaid
population.
Over the years the scope of services States have provided under the
rehabilitation benefit has expanded from physical rehabilitative
services to also include mental health and substance abuse treatment
rehabilitative services. For example, services currently provided by
States under the rehabilitative benefit include services aimed at
improving physical disabilities, including physical, occupational, and
speech therapies; mental health services, such as individual and group
therapy, psychosocial therapy services; and services for substance-
related disorders (for example, substance use disorders and substance
induced disorders). These Medicaid services may be delivered through
various models of care and in a variety of settings.
The broad language of the current statutory and regulatory
definition has, however, had some unintended consequences. It has also
led to some confusion over whether otherwise applicable statutory or
regulatory provider standards would apply under the rehabilitative
services benefit.
As the number of States providing rehabilitative services has
increased, some States have viewed the rehabilitation benefit as a
``catch-all'' category to cover services included in other Federal,
State and local programs. For example, it appears some States have used
Medicaid to fund services that are included in the provision of foster
care and in the Individuals with Disabilities Education Improvement Act
(IDEA). Our audit reviews have recently revealed that Medicaid funds
have also been used to pay for behavioral treatment services in
``wilderness camps,'' juvenile detention, and similar facilities where
youth are involuntarily confined. These facilities are under the domain
of the juvenile justice or youth systems in the State, rather than
Medicaid, and there is no assurance that the claimed services reflect
an independent evaluation of individual rehabilitative needs.
This proposed regulation is designed to clarify the broad general
language of the current regulation to ensure that rehabilitative
services are provided in a coordinated manner that is in the best
interest of the individuals, are limited to rehabilitative purposes and
are furnished by qualified providers. This proposed regulation would
rectify the improper reliance on the Medicaid rehabilitation benefit
for services furnished by other programs that are focused on social or
educational development goals in programs other than Medicaid.
This proposed regulation would provide guidance to ensure that
services claimed under the optional Medicaid rehabilitative benefit are
in fact rehabilitative out-patient services, are furnished by qualified
providers, are
[[Page 45203]]
provided to Medicaid eligible individuals according to a goal-oriented
rehabilitation plan, and are not for services that are included in
programs with a focus other than that of Medicaid.
B. Habilitation Services
Section 6411(g) of the Omnibus Budget Reconciliation Act of 1989
(OBRA 89) prohibits us from taking adverse action against States with
approved habilitation provisions pending the issuance of a regulation
that ``specifies types of day habilitation services that a State may
cover under paragraphs (9) (clinic services) or (13) (rehabilitative
services) of section 1905(a) of the Act on behalf of persons with
mental retardation or with related conditions.'' We believe that
issuance of a final rule based on this proposed rule will satisfy this
condition. We intend to work with those States that have habilitation
programs under the clinic services or rehabilitative services benefits
in their State plans to transition to appropriate Medicaid coverage
authorities, such as section 1915(c) waivers or the Home and Community-
Based
Reduction Act (DRA) of 2005 (Pub. L. 107-171), enacted on February 8,
2006.
II. Provisions of the Proposed Rule
[If you choose to comment on issues in this section, please include
the caption ``PROVISIONS OF THE PROPOSED REGULATIONS'' at the beginning
of your comments.]
A. Definitions
In 440.130(d)(1), we propose to define the terms used in this rule,
as listed below:
Recommended by a physician or other licensed practitioner
of the healing arts.
Other licensed practitioner of the healing arts.
Qualified providers of rehabilitative services.
Under the direction of.
Written rehabilitation plan.
Restorative services.
Medical services.
Remedial services.
In Sec. 440.130(d)(1)(iii), we would define ``qualified providers
of rehabilitative services'' to require that individuals providing
rehabilitative services meet the provider qualification requirements
applicable to the same service when it is furnished under other benefit
categories. Further, the provider qualifications must be set forth in
the
work experience, training, credentialing, supervision and licensing,
that are applied uniformly. Provider qualifications must be reasonable
given the nature of the service provided and the population being
served. We require uniform application of these qualifications to
ensure the individual free choice of qualified providers, consistent
with section 1902(a)(23) of the Act.
Under this proposed definition, if specific provider qualifications
are set forth elsewhere in subpart A of part 440, those provider
qualifications take precedence when those services are provided under
the rehabilitation option. Thus, if a State chooses to provide the
various therapies discussed at Sec. 440.110 (physical therapy,
occupational therapy, speech, language and hearing services) under
Sec. 440.130(d), the requirements of Sec. 440.110 applicable to those
services would apply. For example, speech therapy is addressed in
regulation at Sec. 440.110(c) with specific provider requirements for
speech pathologists and audiologists that must be met. If a State
offers speech therapy as a rehabilitative service, the specific
provider requirements at Sec. 440.110(c) must be met. It should be
noted that the definition of Occupational Therapy in Sec. 440.110 is
not correct insofar as the following--Occupational Therapists must be
certified through the National Board of Certification for Occupational
Therapy, not the American Occupational Therapy Association.
We are proposing a definition of the term ``under the direction
of'' because it is a key issue in the provision of therapy services
through the rehabilitative services benefit. Therapy services may be
furnished by or ``under the direction of'' a qualified provider under
the provisions of Sec. 440.110. We are proposing to clarify that the
term means that the therapist providing direction is supervising the
individual's care which, at a minimum, includes seeing the individual
initially, prescribing the type of care to be provided, reviewing the
need for continued services throughout treatment, assuming professional
responsibility for services provided, and ensuring that all services
are medically necessary. The term ``under the direction of'' requires
each of these elements; in particular, professional responsibility
requires face-to-face contact by the therapist at least at the
beginning of treatment and periodically thereafter. Note that this
definition applies specifically to providers of physical therapy,
occupational therapy, and services for individuals with speech, hearing
and language disorders. This language is not meant to exclude
appropriate supervision arrangements for other rehabilitative services.
B. Scope of Services
Consistent with the provision of section 1905(a)(13) of the Act, we
have retained the current definition of rehabilitative services in
Sec. 440.130(d)(2) as including ``medical or remedial services
recommended by a physician or other licensed practitioner of the
healing arts, within the scope of his practice under State law, for
maximum reduction of physical or mental disability and restoration of a
recipient to his best possible functional level.'' We would, however,
clarify that rehabilitative services do not include room and board in
an institution, consistent with the longstanding CMS interpretation
that section 1905(a) of the Act has specifically identified
circumstances in which Medicaid would pay for coverage of room and
board in an inpatient setting. This interpretation was
upheld in
v.
C. Written Rehabilitation Plan
We propose to add a new requirement, at Sec. 440.130(d)(3), that
covered rehabilitative services for each individual must be identified
under a written rehabilitation plan. This rehabilitation plan would
ensure that the services are designed and coordinated to lead to the
goals set forth in statute and regulation (maximum reduction of
physical or mental disability and restoration to the best possible
functional level). It would ensure transparency of coverage and medical
necessity determinations, so that the beneficiary, and family or other
responsible individuals, would have a clear understanding of the
services that are being made available to the beneficiary. In all
situations, the ultimate goal is to reduce the duration and intensity
of medical care to the least intrusive level possible which sustains
health. The Medicaid goal is to deliver and pay for the clinically-
appropriate, Medicaid-covered services that would contribute to the
treatment goal. It is our expectation that, for persons with mental
illnesses and substance-related disorders, the rehabilitation plan
would include recovery goals. The rehabilitation plan would establish a
basis for evaluating the effectiveness of the care offered in meeting
the stated goals. It would provide for a process to involve the
beneficiary, and family or other responsible individuals, in the
overall management of rehabilitative care. The rehabilitation plan
would also
[[Page 45204]]
document that the services have been determined to be rehabilitative
services consistent with the regulatory definition, and will have a
timeline, based on the individual's assessed needs and anticipated
progress, for reevaluation of the plan, not longer than one year. It is
our expectation that the reevaluation of the plan would involve the
beneficiary, family, or other responsible individuals and would include
a review of whether the goals set forth in the plan are being met and
whether each of the services described in the plan has contributed to
meeting the stated goals. If it is determined that there has been no
measurable reduction of disability and restoration of functional level,
any new plan would need to pursue a different rehabilitation strategy
including revision of the rehabilitative goals, services and/or
methods. It is important to note that this benefit is not a custodial
care benefit for individuals with chronic conditions but should result
in a change in status. The rehabilitation plan should identify the
rehabilitation objectives that would be achieved under the plan in
terms of measurable reductions in a diagnosed physical or mental
disability and in terms of restored functional abilities. We recognize,
however, that rehabilitation goals are often contingent on the
individual's maintenance of a current level of functioning. In these
instances, services that provide assistance in maintaining functioning
may be considered rehabilitative only when necessary to help an
individual achieve a rehabilitation goal as defined in the
rehabilitation plan. Services provided primarily in order to maintain a
level of functioning in the absence of a rehabilitation goal are not
rehabilitation services.
It is our further expectation that the rehabilitation plan be
reasonable and based on the individual's diagnosed condition(s) and on
the standards of practice for provisions of rehabilitative services to
an individual with the individual's condition(s). The rehabilitation
plan is not intended to limit or restrict the State's ability to
require prior authorization for services. The proposed requirements
state that the written rehabilitation plan must:
Be based on a comprehensive assessment of an individual's
rehabilitation needs including diagnoses and presence of a functional
impairment in daily living;
Be developed by qualified provider(s) working within the
State scope of practice acts with input from the individual,
individual's family, the individual's authorized health care decision
maker and/or persons of the individual's choosing;
Ensure the active participation of the individual,
individual's family, the individual's authorized health care decision
maker and/or persons of the individual's choosing in the development,
review and modification of these goals and services;
Specify the individual's rehabilitation goals to be
achieved, including recovery goals for persons with mental health and/
or substance related disorders;
Specify the physical impairment, mental health and/or
substance related disorder that is being addressed;
Identify the medical and remedial services intended to
reduce the identified physical impairment, mental health and/or
substance related disorder;
Identify the methods that would be used to deliver
services;
Specify the anticipated outcomes;
Indicate the frequency, amount and duration of the
services;
Be signed by the individual responsible for developing the
rehabilitation plan;
Indicate the anticipated provider(s) of the service(s) and
the extent to which the services may be available from alternate
provider(s) of the same service;
Specify a timeline for reevaluation of the plan, based on
the individual's assessed needs and anticipated progress, but not
longer than one year;
Document that the individual or representative
participated in the development of the plan, signed the plan, and
received a copy of the rehabilitation plan; and
Document that the services have been determined to be
rehabilitative services consistent with the regulatory definition.
We believe that a written rehabilitation plan would ensure that
services are provided within the scope of the rehabilitative services
and would increase the likelihood that an individual's disability would
be reduced and functional level restored. In order to determine whether
a specific service is a covered rehabilitative benefit, it is helpful
to scrutinize the purpose of the service as defined in the care plan.
For example, an activity that may appear to be a recreational
activity may be rehabilitative if it is furnished with a focus on
medical or remedial outcomes to address a particular impairment and
functional loss. Such an activity, if provided by a Medicaid qualified
provider, could address a physical or mental impairment that would help
to increase motor skills in an individual who has suffered a stroke, or
help to restore social functioning and personal interaction skills for
a person with a mental illness.
We are proposing to require in Sec. 440.130(d)(3)(iii) that the
written rehabilitation plan include the active participation of the
individual (or the individual's authorized health care decision maker)
in the development, review, and reevaluation of the rehabilitation
goals and services. We recommend the use of a person-centered planning
process. Since the rehabilitation plan identifies recovery-oriented
goals, the individual must be at the center of the planning process.
D. Impairments to be Addressed
We propose in Sec. 440.130(d)(4) that rehabilitative services
include services provided to an eligible individual to address the
individual's physical needs, mental health needs, and/or substance-
related disorder treatment needs. Because rehabilitative services are
an optional service for adults, a State has flexibility to determine
whether rehabilitative services would be limited to certain
rehabilitative services (for example, only physical rehabilitative
services) or will include rehabilitative treatment for mental health or
substance-related disorders as well.
Provision of rehabilitative services to individuals with mental
health or substance-related disorders is consistent with the
recommendations of the New Freedom Commission on Mental Health. The
Commission challenged States, among others, to expand access to quality
mental health care and noted that States are at the very center of
mental health system transformation. Thus, while States are not
required to provide rehabilitative services for treatment of mental
health and substance-related disorders, they are encouraged to do so.
The Commission noted in its report that, ``[m]ore individuals would
recover from even the most serious mental illnesses and emotional
disturbances if they had earlier access in their communities to
treatment and supports that are evidence-based and tailored to their
needs.''
Under existing provisions at Sec. 440.230(a), States are required
to provide in the State plan a detailed description of the services to
be provided. In reviewing a State plan amendment that proposes
rehabilitative services, we would consider whether the proposed
services are consistent with the requirements in Sec. 440.130(d) and
section 1905(a)(13) of the Act. We would also consider whether the
proposed scope of rehabilitative services
[[Page 45205]]
is ``sufficient in amount, duration and scope to reasonably achieve its
purpose'' as required at Sec. 440.230(b). For that analysis, we will
review whether any assistive devices, supplies, and equipment necessary
to the provision of those services are covered either under the
rehabilitative services benefit or elsewhere under the plan.
E. Settings
In Sec. 440.130(d)(5), consistent with the provisions of section
1905(a)(13) of the Act, we propose that rehabilitative services may be
provided in a facility, home, or other setting. For example,
rehabilitative services may be furnished in freestanding outpatient
clinics and to supplement services otherwise available as an integral
part of the services of facilities such as schools, community mental
health centers, or substance abuse treatment centers. Other settings
may include the office of qualified independent practitioners, mobile
crisis vehicles, and appropriate community settings. The State has the
authority to determine in which settings a particular service may be
provided. While services may be provided in a variety of settings, the
rehabilitative services benefit is not an inpatient benefit.
Rehabilitative services do not include room and board in an
institutional, community or home setting.
F. Requirements and Limitations for Rehabilitative Services
1. Requirements for Rehabilitative Services
In Sec. 441.45(a), we set forth the assurances required in a State
plan amendment that provides for rehabilitative services in this
proposed rule. In Sec. 441.45(b) we set forth the expenditures for
which Federal financial participation (FFP) would not be available.
As with most Medicaid services, rehabilitative services are subject
to the requirements of section 1902(a) of the Act. These include
statewideness at section 1902(a)(1) of the Act, comparability at
section 1902(a)(10)(B), and freedom of choice of qualified providers at
section 1902(a)(23) of the Act. Accordingly, at Sec. 441.45(a)(1), we
propose to require that States comport with the listed requirements.
At Sec. 441.45(a)(2), we propose to require that the State ensure
that rehabilitative services claimed for Medicaid payment are only
those provided for the maximum reduction of physical or mental
disability and restoration of the individual to the best possible
functional level.
In Sec. 441.45(a)(3) and (a)(4), we propose to require that
providers of the rehabilitative services maintain case records that
contain a copy of the rehabilitation plan. We also propose to require
that the provider document the following for all individuals receiving
rehabilitative services:
The name of the individual;
The date of the rehabilitative service or services
provided;
The nature, content, and units of rehabilitative services
provided; and
The progress made toward functional improvement and
attainment of the individual's goals.
We believe this
trail for rehabilitative services provided, and to establish whether or
not the services have achieved the maximum reduction of physical or
mental disability, and to restore the individual to his or her best
possible functional level.
A State that opts to provide rehabilitative services must do so by
amending its State plan in accordance with proposed Sec. 441.45(a)(5).
The amendment must (1) describe the rehabilitative services proposed to
be furnished, (2) specify the provider type and provider qualifications
that are reasonably related to each of the rehabilitative services, and
(3) specify the methodology under which rehabilitation providers would
be paid.
2. Limitations for Rehabilitative Services
In Sec. 441.45(b)(1) through (b)(8) we set forth limitations on
coverage of rehabilitative services in this proposed rule.
We propose in Sec. 441.45(b)(1) that coverage of rehabilitative
services would not include services that are furnished through a non-
medical program as either a benefit or administrative activity,
including programs other than Medicaid, such as foster care, child
welfare, education, child care, vocational and prevocational training,
housing, parole and probation, juvenile justice, or public
guardianship. We also propose in Sec. 441.45(b)(1) that coverage of
rehabilitative services would not include services that are intrinsic
elements of programs other than Medicaid.
It should be noted however, that enrollment in these non-medical
programs does not affect eligibility for Title XIX services.
Rehabilitation services may be covered by Medicaid if they are not the
responsibility of other programs and if all applicable requirements of
the Medicaid program are met. Medicaid rehabilitative services must be
coordinated with, but do not include, services furnished by other
programs that are focused on social or educational development goals
and are available as part of other services or programs. Further,
Medicaid rehabilitation services must be available for all participants
based on an identified medical need and otherwise would have been
provided to the individual outside of the foster care, juvenile
justice, parole and probation systems and other non-Medicaid systems.
Individuals must have free choice of providers and all willing and
qualified providers must be permitted to enroll in Medicaid.
For instance, therapeutic foster care is a model of care, not a
medically necessary service defined under Title XIX of the Act. States
have used it as an umbrella to package an array of services, some of
which may be medically necessary services, some of which are not. In
order for a service to be reimbursable by Medicaid, states must
specifically define all of the services that are to be provided,
provider qualifications, and payment methodology. It is important to
note that provider qualifications for those who furnish care to
children in foster care must be the same as provider qualifications for
those who furnish the same care to children not in foster care.
Examples of therapeutic foster care components that would not be
Medicaid coverable services include provider recruitment, foster parent
training and other such services that are the responsibility of the
foster care system.
In Sec. 441.45(b)(2), we propose to exclude FFP for expenditures
for habilitation services including those provided to individuals with
mental retardation or ``related conditions'' as defined in the State
Medicaid Manual Sec. 4398. Physical impairments and mental health and/
or substance related disorder are not considered ``related conditions''
and are therefore medical conditions for which rehabilitation services
may be appropriately provided. As a matter of general usage in the
medical community, there is a distinction between the terms
``habilitation'' and ``rehabilitation.'' Rehabilitation refers to
measures used to restore individuals to their best functional levels.
The emphasis in covering rehabilitation services is the restoration of
a functional ability. Individuals receiving rehabilitation services
must have had the capability to perform an activity in the past rather
than to actually have performed the activity. For example, a person may
not have needed to drive a car in the past, but may have had the
capability to do so prior to having the disability.
[[Page 45206]]
Habilitation typically refers to services that are for the purpose of
helping persons acquire new functional abilities. Current Medicaid
policy explicitly covers habilitation services in two ways: (1) When
provided in an intermediate care facility for persons with mental
retardation (ICF/MR); or (2) when covered under sections 1915(c), (d),
or (i) of the Act as a home and community-based service. Habilitation
services may also be provided under some 1905(a) service authorities
such as Physician services defined at 42 CFR 440.50, Therapy services
defined at 42 CFR 440.110 (such as, Physical Therapy, Occupational
Therapy, and Speech/Language/Audiology Therapy), and Medical or other
remedial care provided by licensed practitioners, defined at 42 CFR
440.60. Habilitative services can also be provided under the 1915(i)
State Plan Home and Community Based Services pursuant to the Deficit
Reduction Act of 2005. In the late 1980s, the Congress responded to
State concerns about disallowances for habilitation services provided
under the State's rehabilitative services benefit by passing section
6411(g) of the OBRA 89. This provision prohibited us from taking
adverse actions against States with approved habilitation provisions
pending the issuance of a regulation that ``specifies types of day
habilitation services that a State may cover under paragraphs (9)
[clinic services] or (13) [rehabilitative services] of section 1905(a)
of the Act on behalf of persons with mental retardation or with related
conditions.'' Accordingly, this regulation would specify that all such
habilitation services would not be covered under sections 1905(a)(9) or
1905(a)(13) of the Act. If this regulation is issued in final form, the
protections provided to certain States by section 6411(g) of OBRA 89
for day habilitation services will no longer be in force. We intend to
provide for a delayed compliance date so that States will have a
transition period of the lesser of 2 years or 1 year after the close of
the first regular session of the State legislature that begins after
this regulation becomes final before we will take enforcement action.
This transition period will permit States an opportunity to transfer
coverage of habilitation services from the rehabilitation option into
another appropriate Medicaid authority. We are available to States as
needed for technical assistance during this transition period.
In Sec. 441.45(b)(3), we propose to provide that rehabilitative
services would not include recreational and social activities that are
not specifically focused on the improvement of physical or mental
health impairment and achievement of a specific rehabilitative goal
specified in the rehabilitation plan, and provided by a Medicaid
qualified provider recognized under State law. We would also specify in
this provision that rehabilitative services would not include personal
care services; transportation; vocational and prevocational services;
or patient education not related to the improvement of physical or
mental health impairment and achievement of a specific rehabilitative
goal specified in the rehabilitation plan. The first two of these
services may be otherwise covered under the State plan. But these
services are not primarily focused on rehabilitation, and thus do not
meet the definition of medical or remedial services for rehabilitative
purposes that would be contained in Sec. 440.130(d)(1).
It is possible that some recreational or social activities are
reimbursable as rehabilitative services if they are provided for the
purpose allowed under the benefit and meet all the requirements
governing rehabilitative services. For example, in one instance the
activity of throwing a ball to an individual and having her/him throw
it back, may be a recreational activity. In another instance, the
activity may be part of a program of physical therapy that is provided
by, or under the direction of, a qualified therapist for the purpose of
restoring motor skills and balance in an individual who has suffered a
stroke. Likewise, for an individual suffering from mental illness, what
may appear to be a social activity may in fact be addressing the
rehabilitation goal of social skills development as identified in the
rehabilitation plan. The service would need to be specifically related
to an identified rehabilitative goal as documented in the
rehabilitation plan with specific time-limited treatment goals and
outcomes. The rehabilitative service would further need to be provided
by a qualified provider, be documented in the case record, and meet all
requirements of this proposed regulation.
When personal care services are provided during the course of the
provision of a rehabilitative service, they are an incidental activity
and separate payment may not be made for the performance of the
incidental activity. For example, an individual recovering from the
effects of a stroke may receive occupational therapy services from a
qualified occupational therapy provider under the rehabilitation option
to regain the capacity to feed himself or herself. If during the course
of those services the individual's clothing becomes soiled and the
therapist assists the individual with changing his or her clothing, no
separate payment may be made for assisting the individual with dressing
under the rehabilitation option. However, FFP may be available for
optional State plan personal care services under Sec. 440.167 if
provided by an enrolled, qualified personal care services provider.
Similarly, transportation is not within the scope of the definition
of rehabilitative services proposed by this regulation since the
transportation service itself does not result in the maximum reduction
of a physical or mental disability and restoration of the individual to
the best possible functional level. However, transportation is a
Medicaid covered service and may be billed separately as a medical
assistance service under Sec. 440.170, if provided by an enrolled,
qualified provider, or may be provided under the Medicaid program as an
administrative activity necessary for the proper and efficient
administration of the State's Medicaid program.
Generally, vocational services are those that teach specific skills
required by an individual to perform tasks associated with performing a
job. Prevocational services address underlying habilitative goals that
are associated with performing compensated work. To the extent that the
primary purpose of these services is to help individuals acquire a
specific job skill, and are not provided for the purpose of reducing
disability and restoring a person to a previous functional level, they
would not be construed as covered rehabilitative services. For example,
teaching an individual to cook a meal to train for a job as a chef
would not be covered, whereas, teaching an individual to cook in order
to re-establish the use of her or his hands or to restore living skills
may be coverable. While it may be possible for Medicaid to cover
prevocational services when provided under the section 1915(c) of the
Act, home and community based services waiver programs, funding for
vocational services rests with other, non-Medicaid Federal and State
funding sources.
Similarly, the purpose of patient education is one important
determinant to whether the activity is a rehabilitative activity
covered under Sec. 440.130(d). While taking classes in an academic
setting may increase an individual's integration into the community and
enable the individual to learn social skills, the primary purpose of
this activity is academic enhancement.
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Thus, patient education in an academic setting is not covered under the
Medicaid rehabilitation option. On the other hand, some patient
education directed towards a specific rehabilitative therapy service
may be provided for the purpose of equipping the individual with
specific skills that will decrease disability and restore the
individual to a previous functioning level. For example, an individual
with a mental disorder that manifests with behavioral difficulties may
need anger management training to restore his or her ability to
interact appropriately with others. These services may be covered under
the rehabilitation option if all of the requirements of this regulation
are met.
In Sec. 441.45(b)(4), we propose to exclude payment for services,
including services that are rehabilitative services that are provided
to inmates living in the secure custody of law enforcement and residing
in a public institution. An individual is considered to be living in
secure custody if serving time for a criminal offense in, or confined
involuntarily to, State or Federal prisons, local jails, detention
facilities, or other penal facilities. A facility is a public
institution when it is under the responsibility of a governmental unit
or over which a governmental unit exercises administrative control.
Rehabilitative services could be reimbursed on behalf of Medicaid-
eligible individuals paroled, on probation, on home release, in foster
care, in a group home, or other community placement, that are not part
of the public institution system, when the services are identified due
to a medical condition targeted under the State's Plan, are not used in
the administration of other non-medical programs.
We also propose to exclude payment for services that are provided
to residents of an institution for mental disease (IMD), including
residents of a community residential treatment facility of over 16
beds, that is primarily engaged in providing diagnosis, treatment, or
care of persons with mental illness, and that does not meet the
requirements at Sec. 440.160. It appears that in the past, certain
States may have provided services under the rehabilitation option to
these individuals. Our proposed exclusion of FFP for rehabilitative
services provided to these populations is consistent with the statutory
requirements in paragraphs (A) and (B) following section 1905(a)(28) of
the Act. The statute indicates that ``except as otherwise provided in
paragraph (16), such term [medical assistance] does not include--(A)
Any such payments with respect to care or services for any individual
who is an inmate of a public institution; or (B) any such payments with
respect to care or services for any individual who has not attained 65
years and who is a patient in an IMD.'' Section 1905(a)(16) of the Act
defines as ``medical assistance'' ``* * * inpatient psychiatric
hospital services for individuals under age 21 * * *''. The Secretary
has defined the term ``inpatient psychiatric hospital services for
individuals under age 21'' in regulations at Sec. 440.160 to include
``a psychiatric facility which is accredited by the Joint Commission on
Accreditation of Healthcare Organizations, the Council on Accreditation
of Services for Families and Children, the Commission on Accreditation
of Rehabilitation Facilities, or by any other accrediting organization,